1. ' In this suit for recovery of Rs,28,69,154.83 under Banking (Recovery of Loans Ordinance 1979) defendants 1,2,3 and 5 have filed two applications one bearing C.M. No,1455/87/87 under Oder 37 Rule 3 C.P.C. For leave to appear and defend the suit and the other C.M.A. No,1456/87 under Section 5 of Limitation Act for condonation of delay in filing C.M.A. No,1455/87.
2. ' The record reveals that after the institution of the suit on 14-1-1986, Summons were issued simultaneously, to the defendants through the bailiff, by registered post A.D. And by publication as contemplated under Rule 8 of the Banking Companies (Recovery of Loans Rules 1980). The Registrar's diary dated -2-1986 indicates that publication of summons had taken place in the daily Morning News" dated 31-1-1986. The bailiffs report shows that defendants 1,2,4 and 5 had shifted from the address given in the plaint whereas the defendant No,3 was out of Pakistan. Similar report was given by the postman. On 3-9-1986, the plaintiff's counsel made a statement before the Additional Registrar that the plaintiff do not have any other address of the defendants except as given in the plaint. On 20-11-1986, the plaintiff filed C.MA. No,6174/86 under Order 5 Rule 17 C P C praying for holding service of summons good on the defendants on the basis of publication which took place on 31-1-1986. This application was supported by an affidavit, contents whereof also supported the reports of the bailiffs and the postman.
3. ' However, on 18-1-1987 C.M.A. No,6174 of 1986 came up for orders before the Court alongwith office reference. The office reference also referred to the reports of the bailiff and the postman and the fact of publication of summons having taken place in the Daily "Morning News" on 31-1-1986. The Court after considering the material before it passed the following order:- "Perused the office reference. The defendants be served in the following manner.
(1) By registered post A.D. And through bailiff.
(2) If the defendants are not available at the time of service a copy of notice may be pasted at the outer door on the given address. As the publication has already been made no further publication is required.
(3) By pasting on the Court Notice Board."
4. ' Perusal to the Court order dated 18-1-1987, summons were pasted at the addresses of defendants 2,3 and 5 on 8-2-1987 and service on them was held good by Additional Registrar on 10-12-1987.
5. Similarly summons were affixed on outer doors of the residence of defendants Nos.1 and 4 on 15-3- 1987 and service on them was held good by the Additional Registrar on 16-3-1987. Copy of pia was however received by the advocate for defendants 1,2,3 and 5 on 9-3-1987 per the Registrar's diary.
6. ' In C.M.A. 1456/87 dated 16-3-1987 under Section 5 of Limitation A the defendants 1,2,3 and 5 have jointly prayed for condonation of delay in fili C.M.A. 1455/87 dated 16-3-1987 under Order 37 Rule 3 C P C for leave to defend the suit. This application is supported by an affidavit filed by the defendant No,2 who is also the Managing Director of defendant No,1 stating that on 8-3-1987 he visited the house No,81/A 12th Street, Phase 6 Defence Housing Society to check the condition of his house and was informed by his tenant that summons in the suit had been pasted on the outer door of the house. He therefore, engaged an advocate who filed his Vakalatnama and obtained a copy of the plaint alongwith Annexures the same day. It is thus stated by him that prior to 8-3-1987 the defendants were not aware of the institution of the suit againt them Besides C.M.A. No,1455 of 1877 was filed within ten days of his obtaining the knowledge that the above suit was filed by the plaintiff against them and was within time.
7. ' The plaintiff have vehemently opposed this application stating that summons was published in the Daily Morning News on 31-1-1986 under Rule 8 the Banking Companies (Recovery of Loans)
8. Rules 1980 and since the application for leave to defend the suit was not filed by the defendants within ten days thereof C.M.A. No, 1455 of 1987 for leave to defend the suit is hopelessly time-barred.
9. ' It is contended by Mr.SA. Sarwana, learned counsel for the plaintiff that once publication as contemplated under Rule 8 of the Banking Companies (Recovery of Loan Rules 1980) has taken place, the Court is divested of all its powers and is bound to hold service on the defendants good irrespective of the fact whether the publication had taken place before or after the amendment dated 31-1-1988 to Rule 8. In support he has placed reliance on Ahmed Autos v. Allied Bank of Pakistan PLD 1990 Supreme Court 497 in which it was held: "However, we may point out that there was no need to amend the above Rule 8 as the correct legal position was that the service was to be held to be good service if it was effected by any one or more modes of service provided for in the above quoted Rule 8. If we were to take a contrary view, it would be in conflict with the object of the Ordinance and the rules framed thereunder, as it would make the service more difficult. It would instead of suppressing the mischief which prompted the framing of above Rule 8, would encourage the mischief as a defendant may successfully avoid service by one of the above three modes of service for considerable period by manoeuvring."
10. ' In the present case publication had taken place on 31-1-1986. After a long time on 20-11-1986, the plaintiff moved C.MA. No, 6174 of 1986 under Order 5 Rule 17 C P C praying for holding service of summons good on the defendants which was considered by the Court on 18-1-1987 alongwith the office note and ordered that the defendants be served by Registered A.D. Through bailiff and if the defendants are not available at the time of service, summons be pasted at the outer doors of the addresses. This order also refers to the publication of summons having taken place earlier and after due consideration it wass observed by the learned Judge that no further publication was required. The Order having attained finality cannot be questioned now and it is not possible at s stage to go behind the order. I also do not agree with the learned counsel for the plaintiff that once publication has taken place the Court is bound to hold service good on the defendants and is divested of all its powers to hold otherwise. There is nothing in Ahmed Autos v. Allied Bank of Pakistan, PLD 1990 Supreme Court 497 which suggests that once publication of summons has taken place under rule 8 the Special Banking Court shall cease to apply its mind even through there is an error on the face of record. There may be cases when there are errors or omissions on the face of summons itself as to the name, parentage or desscription of the defendant or number of the suit or other material contents which if allowed to go unhampered would result into gross injustice.
11. ' Now reverting to the date of service of summons there is no dispute that persuant to the order dated 18-1-1987, summons were affixed on 8-2-1987 on the outer doors of the residence of the defendants 2,3 & 5 and on 15-3-1987 on the outer doors of residence of defendants 1 and 4 and it was rightly held by the Additional Registrar that the said defendants were duly served on the said dates.
12. ' C.M.A. 1455/87 under Order 37 Rule 3, C.P.C. For leave to appear and defend the suit was filed by the defendants 1,2,3 and 5 on 16-3-1987. In other words the said application was filed by the defendants 2,3 and 5 much after the statutory period of ten days whereas the defendant No,1 had filed it within time. No such application was moved by the defendant No,4 who was also served alongwith the defendant No,1 on 16-3-1987. Mr. Farooq Naik, learned counsel for the defendants was unable to satisfy me that time shall start running against a defendant for purposes of seeking leave to appear and defend the suit only when he is supplied with a copy of plaint and not from the date of service. Reference here may again be made to M/s. Ahmed Autos and another v. Allied Bank of Pakistan Limited, PLD 1990 Supreme Court 497 in which the Supreme Court of Pakistan approved the view taken in M/s. Union Bank of Middle East Limited versus M/s. Zubna Limited and three. Others, PLD 1987 Karachi 206 in which it was held: ' The question that the plaint cannot be annexed in the case of publication should not be held to be an impediment in holding such service to be good inasmuch as, firstly, the copy of the plaint has been annexed to the summons sent to the defendant through bailiff as well as by registered post and secondly, the defendant is on notice to collect the copy of the plaint from the office and, in any case, there can be not impediment in making just an application for leave to defend, even without a copy of the plaint, within the statutory period. The grounds for leave to defend may be submitted later on, after the receipt of the copy of the plaint."
13. ' In the present case summonses were sent to the defendants through the bailiff as well as by Registered A.D. Together with copy of the plaint but the defendants could not be served. The defendants were ultimately served by pasting at the outer door of their respective addresses in pursuance to order dated 18-1-, 1987. There was nothing to prevent the said defendants to make an application for leave to defend the suit within the statutory period, leaving grounds to be submitted at a later stage. Defendants 2, 3 and 5 were served on 8-2-1987 and there is no plausible ground or explanation as to the delay in filing their application under Order 37 Rule 3 C P C. Defendant No,1, however, was served on 15-3-1987 and therefore his application for leave to defend the suit is within time. With these observations C.M.A. No,1456/87 is disposed of. Suit shall proceed against defendants 2, 3, 4 & 5 under Order 37 Rule 2, C.P.C. In so far as defendant No,1 is concerned, C M A No,1455/87 under Order 37 Rule 3 for his leave to appear and defend the suit will be taken up on a date to be fixed by the office of the Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.